6.50In light of the conclusion that more analysis is required of the alternatives to the jury model in sexual violence cases, we consider what should be done at this stage to address the problems outlined.
6.51In Chapters 4 and 5 we make recommendations seeking to minimise the harm problem through increasing access to alternative modes of giving evidence and improving court facilities.
6.52Some changes are also required to target the decision-making problem while more long-term alternatives to the jury model are assessed. We look at the range of current tools to minimise illegitimate reasoning by jurors and make suggestions for how they might be put to use as effectively as possible.
6.56At present, the only judicial direction in the Evidence Act 2006 that pertains specifically to misconceptions in sex offence cases is section 127, which provides for a direction on delayed complaints or failures to complain. It first appeared in the legislation in 1985. In its current form it provides as follows:
127 Delayed complaints or failure to complain in sexual cases
(1) Subsection (2) applies if, in a sexual case tried before a jury, evidence is given or a question is asked or a comment is made that tends to suggest that the person against whom the offence is alleged to have been committed either delayed making or failed to make a complaint in respect of the offence.
(2) If this subsection applies, the Judge may tell the jury that there can be good reasons for the victim of an offence of that kind to delay making or fail to make a complaint in respect of the offence.
6.59We would not, however, recommend that new judicial directions pertaining to sexual violence be included in the Evidence Act 2006 without research into the prevailing misconceptions that affect jurors in sexual violence cases and how those misconceptions are most effectively targeted via judicial direction. It may be that the research confirms that judicial directions are not necessarily desirable in all circumstances, in which case little would be gained by adding new directions to the Act. Also, any directions included in the Act would be unable to be readily updated in light of subsequent knowledge about the effect of rape myths on juror decision-making, which is always evolving.
6.60However, there is good reason to provide more comprehensive guidance to judges on how and when it might be appropriate to address the jury on certain counter-intuitive matters in sexual violence trials. Judges must be well-informed and educated about when it is appropriate to make such directions and how they should be framed.
6.61We draw attention to Chapter 17 of the Crown Court Bench Book issued by the Judicial Studies Board of England and Wales, which contains a number of model directions dealing with matters such as “avoiding judgements based on stereotypes” and “effect of trauma on demeanour in evidence”. We recommend that judges who sit on sexual violence cases should have access to detailed and up-to-date guidance on the instances in which guiding judicial directions to the jury may be appropriate in sexual violence cases and examples of how those directions should be framed.
Framing directions if the jury is retained are critical but need consistency. There should be an agreed direction used in every case because our experience is that there is a great unevenness in judicial trial directions. Not just as to what is said; but sometimes nothing at all is deployed.
6.63We strongly recommend increased judicial guidance on these issues.
We of course accept that expert evidence concerning, for example, battered wife syndrome or [Post Traumatic Stress Disorder] may be admissible in the context of the trial of sexual abuse allegations, where such syndrome or disorder may be directly relevant to the conduct of a complainant at the time of the allegations. That a complainant remained in an abusive relationship is the obvious example where expert opinion evidence may be of assistance to a jury.
6.67We understand that there are currently variations in practice in the giving of counter-intuitive evidence throughout the country, which may be due in part to the availability of experts who are willing to give that counter-intuitive evidence. At present, as far as we are aware, this type of evidence has only been used in cases where the complainant is a child, or was a child at the time of the alleged offending.
6.68The sexual violence support sector noted there is a shortage of people who are able and willing to give counterintuitive evidence. It is a big time commitment as the experts need to prepare at length. We were also told that consideration needs to be given to the effectiveness of counter-intuitive evidence, including how barriers to understanding counter-intuitive evidence within the jury might be overcome.
6.69We do not think the giving of expert psychological evidence in person in court, as a means of addressing misconceptions in sexual violence cases, should be ruled out. Its use should be assessed on a case-by-case basis according to whether there is someone who is well-placed to do it and whether the prosecution thinks it is required. We make no recommendations to change the status quo in terms of the use of expert counter-intuitive evidence, but its use should be addressed in the prosecutorial guidance recommended in Chapter 5. In addition, a government-level initiative to undertake an expert evidence programme including resourcing, monitoring and staffing is worthy of consideration.
6.71The cases in which an admission of evidence under section 9 is possible will, however, be small because it requires the consent of the defence. Where defendants do not understand the nature of the expert evidence (and may also be under misconceptions about sexual violence) they are unlikely to agree to a section 9 statement. Nonetheless, we recommend that parties should be encouraged to agree on the content of any expert evidence to be presented at trial, and should wherever possible admit it under section 9 by way of a written statement.
6.74There is a strong basis for arguing that sexual violence, as a form of criminal offending, is not amenable to fact-finding by 12 lay jurors. There are alternatives, but they need further analysis before they can be implemented. In the interim, the recommendations made in this chapter and in Chapters 4 and 5 should be implemented as a means to address the harm problem and the decision-making problem which are both caused and exacerbated by the presence of the jury in sexual violence trials. In addition, analysis of complete alternatives to the current jury model, and testing of those alternatives if appropriate, should take place during evaluation of the specialist court proposed in Chapter 5.